Recent events lead us to ask: Have you developed a TAM process yet?
Jeff Nolan, Editor
Dinse, Knapp & McAndrew, P.C., Burlington
by Jeff Nolan, with contributions from Marisa Randazzo, PhD, and Gene Deisinger, PhD
Hardly a week goes by without another incident of targeted violence at a workplace, public venue, or school in the United States. Some have occurred in other parts of the country: Aurora, Colorado; Las Vegas, Nevada; Orlando, and Parkland, Florida; San Bernardino, California; and Sandy Hook, Connecticut. Some have occurred closer to home: In 2006, according to news reports, a Vermont man killed his ex-girlfriend’s mother at her home the day after the ex-girlfriend ended their abusive relationship, and then he went to the school where the ex-girlfriend worked as a teacher. He didn’t find her there, but he shot and killed a woman who was her friend and fellow teacher, and shot and wounded two other school employees before attempting suicide.
Of course, Vermonters’ attention is currently focused on the case of a young Vermont man who recently told police of his detailed plans to commit an attack on his former high school in Fair Haven. Fortunately, an acquaintance alerted police to the man’s plans, potentially averting a horrible tragedy. In response, the Vermont Legislature and Governor Phil Scott have worked together to pass unprecedented gun control and other protective legislation. In related news, the 19th anniversary of the attack at Columbine High School was observed in April, and students in Vermont and around the country continue to advocate for legislative reform.
Guns are obviously a common feature in each of these incidents or near incidents, but another common feature tends to get considerably less media coverage: Most of the shootings were preceded by a period in which the shooter carefully planned the attack and acquired weapons. Because we know that, we should be doing everything we can reasonably do to identify potential threats and intervene to prevent violence at the earliest possible stage. A process called threat assessment and management (TAM) is designed to do exactly that.
A little background
In an article published in the September 2011 issue of Vermont Employment Law Letter, I offered some suggestions to help employers perform an initial audit of their violence prevention efforts, introduced the concept of implementing TAM practices in the workplace, and set the stage for more detailed coverage of these issues in future articles (see “Smart, careful planning can reduce the threat of workplace violence” on pg. 1 of that issue).
In another article, I wrote about the October 2011 publication of an American National Standard on Workplace Violence Prevention and Intervention (WVPI Standard) by ASIS International and SHRM. That article summarized the WVPI Standard’s suggestions on developing a strong workplace violence prevention program, including a workplace TAM team (see “A New Year’s resolution worth keeping: workplace violence prevention” on pg. 1 of our December 2011 issue). This article assumes the reader’s familiarity with those previous articles.
As we have outlined in previous articles, you should initially (1) identify the members of your TAM team, (2) give it a name that works for your organization, (3) plan how you will let employees know the team exists, and (4) determine how you will train employees to report behavior or comments that suggest someone poses a risk to himself or others to a member of the team ASAP, without fear of retaliation. In conjunction with those steps, you will need to plan, in general terms, how the TAM team will respond to reports it receives.
Again, research has shown that perpetrators of serious targeted violence don’t just “snap.” Certainly, impulsive affective violence sometimes does occur in heated situations, but research and analysis have shown that targeted attacks more commonly involve advance planning by the perpetrator. Most attackers consider, plan, and prepare before engaging in violent behavior. That was true of the attacks in Aurora, Las Vegas, Orlando, Parkland, San Bernardino, and Sandy Hook. Similarly, a police affidavit supporting charges filed in connection with the Fair Haven case contains chilling details about the suspect’s meticulous planning of how he would finance his purchase of weapons and ammunition, murder the school resource police officer, carry out the attack, and then commit suicide. Suicide is also a common thread in targeted attacks: Research has shown that most perpetrators are suicidal, or at a point of desperation, before the attacks.
The research has implications for employers’ prevention efforts: Because information about a person’s ideas and plans to cause harm can be observed or discovered in advance, incidents of workplace violence can be prevented in some cases. The problem is, the available information is likely to be scattered, and “leakage” of clues may occur by various means. For example, employees of concern may talk with coworkers about their grievances, suggest that violence is a reasonable response to their circumstances, and even inform others of their acquisition of weapons and other planning steps. Therefore, your TAM team needs to act quickly after receiving an initial report from a concerned employee, determine if someone else has a piece of the puzzle, and then assemble the information to see what picture emerges. The TAM process helps structure the way in which the team does that work.
This article focuses generally on steps recommended by two sources: Dr. Marisa Randazzo and Dr. Gene Deisinger, and the ASIS/SHRM WVPI Standard. Randazzo and Deisinger outline their steps in their “Handbook for Campus Threat Assessment & Management Teams” (referred to throughout this article as the “TAM Handbook” and available at http://sigmatma.com/about/ourbooks/). Significantly, the TAM Handbook was recommended as a resource in “A Risk Analysis Standard for Natural and Man-Made Hazards to Higher Education Institutions,” published by the ASME Innovative Technologies Institute, LLC, and approved by the American National Standards Institute in 2010. While the TAM Handbook was written primarily for a higher education audience, its concepts are easily transferable to noneducational workplaces, particularly because it was intended to be used to assess potential threats posed by employees as well as students.
First things first: Is the situation an emergency?
The TAM Handbook and the WVPI Standard are consistent in recommending that a TAM team’s or management employee’s first duty after receiving information about suspicious behavior is to decide quickly whether there’s an imminent threat or emergency. Because of the urgency involved, that determination will have to be made based on readily available information, such as the initial report and any background information members of the team or other sources close to the situation have. If the situation is deemed an emergency, then law enforcement needs to be contacted and crisis management/physical safety measures must be implemented immediately.
The TAM team will eventually need to conduct a full threat assessment inquiry and take appropriate measures if the potential perpetrator is released from custody, but in an emergency or imminent threat situation, the team’s primary course of action is to notify law enforcement to ensure the situation is contained. Once the immediate risk is contained, the team can proceed with the more advanced threat assessment steps outlined below, tailored to the circumstances.
In anticipation of the potential need to involve law enforcement, you should develop or enhance your relationship with local law enforcement agencies. Let those agencies know that you are adopting a TAM process, and work with them to identify ways in which you can best interact in emergent and nonemergent (but concerning) situations. It’s important to do this as soon as possible, and not wait until a troubling situation has already arisen, because advance planning and relationship building can create trust and save valuable time when it may count most.
Second step: Perform initial data gathering and risk screening
If the TAM team determines there’s no emergency or imminent threat, it should move on to initial data gathering and risk screening. Those tasks should also be performed when the person of concern has been removed from the workplace by law enforcement through a criminal law or involuntary hospitalization process if it appears that he will be released from custody in the near future. The WVPI Standard distinguishes this step by the TAM team from “a more elaborate process performed by specifically qualified [threat assessment] personnel.” The purpose of the data gathering and risk screening is to “assist the [TAM team] in determining the general urgency of a situation and appropriate initial actions to take.”
The TAM team should seek out information from all available resources and people who may be familiar with the person of concern. This information-seeking process is crucial and distinguishes the TAM team’s work from less active HR-related workplace functions. According to the WVPI Standard, sources of initial information can include:
- Employees who reported the concerning behavior or are potential targets of the behavior;
- Current and former supervisors of an employee who is the person of concern, the HR professional most closely associated with the employee, the employee’s personnel file, and his workplace computer, e-mail account, and other electronic communications and Internet usage history (Hopefully, you have a clear policy informing employees that they have no expectation of privacy in their workplace computer activity.); • All communications by the employee that have generated concern;
- All communications received from a third party who is the person of concern as well as a criminal background check, if possible (which can be performed on anyone in Vermont through the Vermont Criminal Information Center); and
- Publicly available information about the person of concern, such as information found on Google, Facebook, and YouTube.
The TAM team’s review and analysis of social media activity has become even more crucial and potentially fruitful since the WVPI Standard was published in 2011 because the use of social media has obviously increased rapidly in the intervening period. The TAM team should work with your IT professionals ahead of time to understand how to best navigate likely sites of interest, so they can move quickly and efficiently if a threat assessment becomes necessary.
The WVPI Standard cautions that “a formal violence risk assessment shall be conducted solely by specifically qualified and credentialed personnel or outside consultants.” However, when doing the initial data gathering, a TAM team could perform its preliminary triage work and gain some insight into whether an increased risk of violence may be present by focusing on certain key questions, including:
- What appears to be motivating the person to make the concerning statements or take the concerning actions?
- What has the person communicated about her intentions? • What interest, if any, has the person shown in violence or its justification, violent perpetrators, weapons, or extremist groups?
- Has the person engaged in planning and preparation for violence, such as approaching a target or site, breaching security, or monitoring, harassing, or stalking a target?
- Does the person have a known or suspected history of a mental illness or substance abuse? Has the person exhibited symptoms of paranoia, delusions, hallucinations, extreme agitation, despondency, or suicidal tendencies (especially with any violent content)? Has he ever acted on those beliefs?
- Is there any evidence of serious oppositional or counterproductive attitudes or behavior in the workplace (e.g., unjustified blaming of others, a strong sense of entitlement, defensiveness, or intolerance of others’ rights)?
- How does the person manifest her anger, and how focused is that anger on individuals in the workplace?
- Has the person experienced (or is he likely to soon experience) any serious personal or financial stressors (e.g., loss of his job or status, divorce, a custody dispute, or a death in the family)? Does he show poor coping skills in reaction to those stressors?
- What is the person’s known history of serious interpersonal conflict, violence, or other criminal conduct in domestic or other settings?
- Is there evidence of any organizational, supervisory, or workplace problems that have contributed to or provoked the behavior/statements of concern, and how do those problems influence the individual’s perception of her circumstances?
The WVPI Standard also includes key questions aimed at disclosing factors that may lower or mitigate the risk of violence, such as:
- Does the person of concern have valued family or other positive personal attachments?
- Has the person expressed genuine remorse for making threats or engaging in the concerning behavior?
- Has the person responded positively to defusing or limit-setting efforts by others?
- Has the person engaged in appropriate problem solving or sought professional treatment or legal recourse as a way to manage a stressful situation?
- What services have been offered to the individual and accessed positively?
The WVPI Standard recognizes that answers to many of these questions may not be available initially or at all, so they should serve as suggested areas of inquiry when practical rather than a “punch list” that must be completed exhaustively in every case. The standard also cautions that the TAM team should consult with legal counsel during the information-gathering process to ensure compliance with applicable laws (and, I will add, employer policies).
Third step: Evaluate information from the initial risk screening
The WVPI Standard states that after the TAM team gathers the initial information, it should evaluate the information from a lay perspective. Questions asked at this point should include:
- Is the concern about potential violence unwarranted, meaning the individual’s behavior can be handled within normal HR, disciplinary, or employee relations protocols rather than through a TAM process?
- Is some concern about violence warranted, but not significant or urgent, so that the TAM team can continue with additional fact gathering and its incident management processes?
- Is the concern about violence high enough that consulting law enforcement personnel or a violence risk assessment professional warranted?
If the team concludes that the situation falls within categories (2) or (3), it should retain a connection to the case and initiate case/threat management efforts.
Fourth step: Begin formal threat assessment/threat management process
Very high-functioning TAM teams with access to in-house expertise in professional threat assessment may view the assessment and management activities as separate, but few Vermont employers will have that capacity. For the majority of employers, it’s fair to say that if an in-house TAM team determines that a situation falls somewhere between categories (2) and (3), the employer should engage a qualified threat assessment professional and legal counsel to guide its threat management efforts.
The WVPI Standard suggests that “immediate or early consultation with a qualified violence risk assessment professional is particularly advised when the [TAM team] feels uncertain in its ability to accurately evaluate risk even in a general or gross fashion.” The threat assessment professional will determine whether a formal threat assessment process is warranted, and the TAM team will work with the professional and legal counsel to gather information as necessary and appropriate.
In terms of threat management, the WVPI Standard suggests that in addition to retaining a threat assessment professional and legal counsel, the TAM team can:
- Continue or expand its information collection efforts.
- Assess the need for additional physical security.
- Initiate coordination with local law enforcement.
- Work with HR to implement employment actions such as discipline, suspension, termination, referral to an employee assistance program (EAP), or administrative leave (while recognizing that termination alone doesn’t guarantee safety and may actually increase the risk of violence).
- When the person of concern is an employee who appears to be suffering from a mental illness, consult with legal counsel to determine the organization’s obligations and rights under the Americans with Disabilities Act (ADA)—an issue that will be discussed in a later article.
- When the person of concern is a third party, consider professional surveillance efforts, within legal parameters.
- Work with counsel to initiate appropriate legal action (such as a restraining order, protective order, or no-trespass notice) if, after careful evaluation and consultation with a threat assessment professional, it is determined that such action will actually enhance, rather than diminish, the overall threat management efforts. If not well conceived, legal action can precipitate rather than minimize threatening behavior.
The TAM Handbook similarly states that in the threat management phase, the TAM team should develop, implement, monitor, and document a plan to intervene and reduce the threat. The plan should be customized to address the person of concern and the situation with the best resources available or accessible to the team and the organization. The goal of a threat management plan is to help shift the person of concern away from thoughts and plans for violence/suicide and get him help with addressing his problems.
Randazzo and Deisinger note that threat management plans can include any of the following options, as well as others dictated by the situation and resources:
- Monitor the situation for further developments.
- Engage with the person of concern to deescalate the situation.
- Involve an ally or trusted friend to monitor the person of concern.
- Notify the person’s family.
- Seek help from law enforcement.
- Undertake disciplinary review and action.
- Implement a behavioral contract.
- Suggest voluntary referral for mental health evaluation and/or treatment.
- Mandate a psychological assessment.
- Require involuntary hospitalization for evaluation and/or treatment. (This is difficult to obtain in Vermont, but legal counsel and/or law enforcement can be consulted on the issue.)
- Initiate leave or separation from employment (voluntary or involuntary).
- Modify the environment to mitigate the impact of contributory factors.
- Collaborate with the identified target/victim to decrease her vulnerability.
- Monitor and prepare for the impact of likely precipitating events.
The TAM Handbook emphasizes that once the TAM team has created a threat management plan, it’s just as important to document the plan, implement it, and monitor how well it is working—to make sure it’s having the intended effect and not inadvertently making the situation worse. Consulting a threat assessment professional and legal counsel during the threat management phase is therefore advised.
It’s important to note that a person can continue to pose a threat even after he is no longer connected with the organization. For instance, the suspect in the Fair Haven case left Fair Haven High School for another school but still continued to pose a threat. The TAM Handbook states that the TAM team should continue to monitor the plan and modify it as needed for as long as the person/situation reasonably poses a threat. It may be necessary for the TAM team to continue to refer the person of concern to necessary resources or take other follow- up steps as the situation and level of concern dictate.
As it considers the factors that may affect the person’s behavior in the short, mid, and long term, the TAM team should anticipate the impact of future precipitating events that could prompt the person to become an increased threat—i.e., important personal dates or anniversaries, termination of benefits, formal termination of employment, or the occurrence or anniversary of well publicized targeted attacks elsewhere. The team should develop contingency plans and take steps to reduce or mitigate the anticipated threats.
Fifth step: Close and document the case
The TAM Handbook emphasizes that cases handled by a TAM team generally remain open until the person of concern no longer appears to pose a threat. That may be well beyond when mental health services are completed or a criminal case is closed (or even dismissed, as your internal process shouldn’t depend on the outcome of the criminal justice system). Whether the case remains open or is closed, the TAM team should document how it handled the case, including the report that first came to the team’s attention, the information the team gathered, its evaluation of the information, the case management plan it developed and implemented (if necessary), and any reevaluations or monitoring after its initial evaluation and case management efforts. Such documentation is very sensitive given the potential risks involved, so the TAM team should work with legal counsel.
I hope this outline of the TAM process provides a useful perspective on how a TAM team can function internally and how it can determine when to seek the assistance of outside resources. Of course, training on TAM issues is available, so you can determine for yourself how highly you want your team to function and obtain TAM training at a level that works in your particular circumstances.
The bottom line is, the general TAM process should be in place at every workplace so the team can be mobilized quickly when necessary. The team should at least have enough training and previous work experience to understand the roles and basic functions team members will perform in the event of an emergency. Obviously, that advance work should be done long before a critical incident occurs.
Unfortunately, recent events nationally and locally emphasize how important it is for all employers, even employers in our relatively peaceful state, to do what you reasonably can to prevent workplace violence. TAM teams should be seen as a crucial component of an overall workplace violence prevention system and created, trained, and supported accordingly.
This article updates a 2015 article to provide information about recent events and a detailed outline of how the TAM process should operate in most workplace settings. In addition to citing the WVPI Standard’s discussion of the TAM process, I’ve relied on the work of Marisa Randazzo, PhD, and Gene Deisinger, PhD, with whom I work regularly through Sigma Threat Management Associates (www.SigmaTMA.com). Randazzo and Deisinger are threat assessment professionals who practice nationally. Their contributions are gratefully acknowledged.
Jeff Nolan can be reached at firstname.lastname@example.org or 802-864-5751.
‘Woke dicta’? Title VII covers sexual orientation discrimination
Kendall Hoechst, Amy McLaughlin, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Kendall Hoechst
Vermont employers should know that the Vermont Fair Employment Practices Act (FEPA) explicitly prohibits discrimination based on not only employees’ sex but also their gender identity and sexual orientation (as well as other protected categories). Thus, on its face, Vermont law is broader than its federal equivalent, Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination on the basis of sex but doesn’t include the separate characteristics of sexual orientation or gender identity.
Previously, the U.S. 2nd Circuit Court of Appeals (whose rulings apply to all Vermont employers) held that sexual orientation discrimination claims, including claims that being gay or lesbian constituted nonconformity with a gender stereotype, weren’t covered under Title VII. The 2nd Circuit revisited its previous decisions in a rare en banc sitting—meaning with all the members of the court rather than a three-judge panel—in Zarda v. Altitude Express, Inc. The majority held that Title VII prohibits discrimination based on sexual orientation as discrimination “because of . . . sex.”
Donald Zarda, a gay man, was employed as a skydiving instructor at Altitude Express. He frequently participated in tandem dives with Altitude Express clients, which involved being strapped hip to hip and shoulder to shoulder before jumping out of the airplane. Zarda told a female client that he was gay to preempt discomfort with being strapped closely to a man. However, the client claimed that he touched her inappropriately and disclosed his sexual orientation to excuse his behavior. He denied inappropriately touching her. After the jump, the client told her boyfriend her allegation of inappropriate touching. The boyfriend told Zarda’s boss, who fired him.
Zarda sued his employer under both New York law and Title VII, claiming that he was fired because he referred to his sexual orientation and because he didn’t conform to the “straight male macho stereotype.”
The trial court held that Zarda’s Title VII claims were barred under the 2nd Circuit’s previous precedent and ruled in favor of the employer on the federal claim. After a trial on the state-law claim, which required a different standard of proof than the federal claim, the jury returned a verdict in favor of the employer. Zarda appealed to the 2nd Circuit.
Interestingly, the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) took opposing views in amicus briefs submitted to the court—i.e., arguments intended to influence the court’s decision written by parties that are not directly involved in the case but have an interest in the outcome. The DOJ argued that Title VII doesn’t prohibit sexual orientation discrimination. The EEOC claimed to be the “primary agency” charged with interpreting Title VII and argued the opposite.
The majority opinion had three primary holdings. First, the court held that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination. The majority concluded that firing a man because he is attracted to men or a woman because she is attracted to women is a decision motived, at least in part, by sex.
Second, the court held that sexual orientation discrimination is rooted in gender stereotypes and thus is a subset of sex discrimination. It recognized that its previous precedents were unworkable because of the difficult lines that were required to be drawn. For example, a woman might have had a Title VII claim if she was fired for being perceived as too “macho” but not if she was fired for being perceived as lesbian.
Third, the court held that sexual orientation discrimination is based on an employer’s opposition to association between particular sexes and thereby discriminates against employees based on their sex. The 2nd Circuit had previously recognized associational discrimination as a violation of Title VII in the context of race discrimination. Thus, like antimiscegenation policies, discrimination based on sexual orientation is a form of associational discrimination prohibited by Title VII.
Four concurring opinions and three dissenting opinions were authored by various judges. Judge Dennis Jacobs concurred in only the associational discrimination justification and found it unnecessary to reach the others, explaining, “A ruling based on Mr. Zarda’s same-sex relationship resolves this appeal; good craft counsels that we go no further. Much of the rest of the Court’s opinion amounts to woke dicta [socially conscious observations that aren’t binding as legal precedent].”
Judge Robert Sack’s opinion also concluded that the appeal could be decided on the “simpler and less fraught” theory of associational discrimination. He noted that the court is in “the context of something of a revolution in American law respecting gender and sex” and therefore thought it best to tread carefully.
Judge José Cabranes concurred only in the judgment in a very brief opinion, essentially opining that his colleagues spilled too much ink getting to the point that sexual orientation is a function of sex, end of story. Judge Cabranes even dropped a footnote quoting a text from the third century B.C. to underscore his point that less is more. Judge Raymond Lohier, Jr., favored a textualist approach and concluded that sex subsumes sexual orientation just as race subsumes ethnicity.
The primary dissent was authored by Judge Gerard Lynch. He explained that he would be “delighted to wake up one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII” and would be “equally pleased to awake to learn that Congress had secretly passed such legislation more than half a century ago.” However, “we all know Congress did no such thing.” He examined the historical context of the passage of the Civil Rights Act of 1964 and essentially concluded that classifying people by sexual orientation isn’t the same as classifying them by sex. Discrimination against people whose sexual orientation is homosexual rather than heterosexual, however offensive, isn’t discrimination that treats men and women differently. He also distinguished the majority’s arguments from the U.S. Supreme Court’s constitutional analysis of gay marriage.
The 2nd Circuit is the third federal appellate court to consider sexual orientation discrimination questions recently. The 7th Circuit, also sitting en banc, ruled in Hively v. Ivy Tech that discrimination based on an employee’s sexual orientation violates Title VII. The 11th Circuit, however, held the opposite in Evans v. Georgia Regional Hospital and declined to hear the case en banc. The 8th Circuit is the next court to consider the issue.
Recently, Vermont Attorney General T.J. Donovan joined other attorneys general in filing an amicus brief arguing that Title VII encompasses discrimination on the basis of sexual orientation.
There’s now a split among federal circuit courts. The split could be resolved by the Supreme Court or Congress, but the latter seems unlikely in the current political climate. For now, the 2nd Circuit’s decision is the law in Vermont, New York, and Connecticut.
While it was—and remains—illegal to discriminate on the basis of an employee’s sexual orientation in Vermont, the 2nd Circuit’s decision will permit employees to pursue federal discrimination claims based on sexual orientation. That makes it more likely that employees will file future claims in federal court.
Furthermore, Vermont courts still look to federal law when interpreting state law, so future federal decisions regarding discrimination based on sexual orientation will have implications for state law.
Kendall Hoechst can be reached at email@example.com or 802-859-7042.
Vermont newspaper editor learns that free speech comes with a price
Karen McAndrew, Leigh Cole, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Karen McAndrew
When a person who is paid to edit the written words of others fails to edit his own words, his job may be in jeopardy.
Early this year, Denis Finley, editor of the Burlington Free Press, Vermont’s largest newspaper, was fired for the tone and content of several tweets about matters in the news. Like most print media, the Free Press has watched its subscribership and advertising revenue decline as fewer and fewer people wait for the arrival of a morning newspaper on their doorstep. As a result, “tweeting” and connecting on social media were apparently encouraged as part of Finley’s role in a nod to the direction in which the news business is headed—faster, shorter, instantaneous feeds of information to a public that has access to cable and network news 24/7.
Gannett, which owns the Free Press, has a policy that makes clear that social media is “core to [its] strategic goal of reinventing local journalism in the digital age.” As editor of the paper, it was not out of line for Finley to post editorial comments on matters of interest in the news. And post he did, often in the rapid-fire “Twittersphere.”
In covering Finley’s firing, the Washington Post’s “Morning Mix,” a blog about news from around the world, quoted several tweets that did not lead to his firing but did provoke strong opposition. When the New York Times tweeted that President Barack Obama (by then out of office) would be the first guest on David Letterman’s new Netflix talk show, Finley shot back, “Another reason not to subscribe to Netflix.” When Politico tweeted, “2017 is almost over. Here are the 18 politicians, activists, and operatives to watch in the new year,” Finley responded, “In other words, ignore them. Politicians, activists and operatives are what got us into this mess. The only people who care are whores, like Politico.” VTDigger, an online investigative reporting source, noted that Finley had made light of allegations of sexual misconduct against Roy Moore and Charlie Rose in other tweets.
Finley’s firing was a result of a Twitter war he started in response to a news report that Vermont was considering putting a third gender option on driver’s licenses. He commented: “Awesome! That makes us one step closer to the apocalypse.” Critics and critics of the critics on both sides jumped in, and Finley didn’t let it drop. He responded to one offended follower by asking, “What if someone said it’s awesome they are going to recognize pedophiliacs on licenses?” He wrote, “I’m not being snarky, I’m just asking. Not all recognition is awesome.”
Gannett promptly announced that Finley had “left the company.” Finley reportedly said he was fired because he expressed opinions with which the company disagreed. The company said he was fired because he violated its social media policy. Gannett’s social media policy is posted online and admonishes all employees not to “post comments that include discriminatory remarks, harassment, threats of violence or similar content” and to “exercise discretion in sharing personal information, and political, cultural or religious views.” Although Gannett has not publicly pointed to those provisions in discussing Finley’s termination, it seems likely that the prohibition against making “discriminatory remarks” about a topic of political interest was the language used to justify his firing.
But what about the First Amendment?
Many online comments about Finley’s firing asked what happened to the right to free speech and the First Amendment to the U.S. Constitution. The Constitution, however, has little to do with it, and references to the First Amendment reflect a lack of understanding of its reach. The Bill of Rights, which the First Amendment helps form, states in relevant part, “Congress shall make no law . . . abridging the freedom of speech, or of the press.”
Although public employers and employers that receive certain federal funds face limitations on the extent to which they can restrict speech, the limitations on Finley’s speech (and the consequences of him expressing his opinions) were imposed by Gannett (a private employer), not by a governmental or government- funded agency. And even public employers may impose reasonable restrictions on the “time, place, and manner” of speech.
What should employers do with this knowledge?
There are limitations in the law on even private employers silencing speech. You cannot, for example, prohibit employees from discussing the terms or conditions of their employment, and in Vermont, you cannot prohibit employees from discussing their wages with each other. However, it is perfectly acceptable to enact policies governing speech that is disrespectful or vulgar, discloses confidential company information, or contravenes the values your company ascribes to. You may take disciplinary action against employees who violate your company’s stated policies or guidelines.
In this age of the rapid proliferation of social media— where much of the dialogue seems derogatory, defamatory, and grossly inappropriate in a civilized society— enacting a social media policy that sets guidelines for employees who may have become inured to the harm that can result from social media makes good sense. If you have questions or concerns about what limitations may be imposed on employee speech, consulting with counsel could prevent headaches down the road.
Karen McAndrew can be reached at firstname.lastname@example.org or 802-864-5751.
New Vermont pot law: what employers need to know
Amy M. McLaughlin, Kendall Hoechst, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Jeff Nolan
Soon, it will be legal in Vermont for people who are 21 or older to possess limited quantities of marijuana and marijuana plants. You may be wondering whether the new law affects your ability to enforce rules on smoking or the use of drugs in your workplace. In short, the answer is, nope. In crafting the law, the Vermont Legislature specifically addressed workplace issues and made clear that the law doesn’t require employers to change their policies or permit the use or possession of marijuana at work.
General provisions of the law
The new law, titled “An act relating to eliminating penalties for possession of limited amounts of marijuana by adults 21 years of age and older,” was signed by Governor Phil Scott on January 22, 2018. The portions of the law relevant to our discussion will go into effect on July 1. The law defines “marijuana” as “all parts of the plant,” including seeds, resin, and compounds derived from the plant, its seeds, or its resin, but not mature stalks, hemp, or other excluded parts.
As of July 1, 2018, individuals who are 21 years old or older will be permitted to possess up to one ounce of marijuana or five grams of hashish, and cultivate up to two mature marijuana plants or four immature marijuana plants. Criminal penalties apply if a person possesses more than is allowed by those limits. The criminal penalties increase with second and third offenses, and with larger amounts of marijuana.
The law prohibits the consumption of marijuana in a “public place,” which is defined as “any street, alley, park, sidewalk, public building other than individual dwellings, any place of public accommodation [as defined in the Vermont Public Accommodations Act, or VPAA], and any place where the use or possession of a lighted tobacco product, tobacco product, or tobacco substitute . . . is prohibited by law.”
The law doesn’t protect people who possess or consume marijuana from laws related to driving under the influence of marijuana or consuming marijuana while driving, it doesn’t limit the authority of primary or secondary schools to impose administrative penalties for the possession of marijuana on school property, and it doesn’t prohibit landlords from, among other things, banning the possession or use of marijuana in lease agreements.
Provisions of particular interest to employers
Some provisions of the law actively prohibit marijuana use in workplaces, while others explicitly allow employers to continue to regulate whether marijuana can be possessed or used on their premises.
In terms of active prohibitions, as noted above, the law prohibits the “consumption” of marijuana in a “public place,” which includes “any place of public accommodation as defined in” the VPAA. The definition of “public accommodation” in the VPAA is broad and includes “any school, restaurant, store, establishment, or other facility at which services, facilities, goods, privileges, advantages, benefits, or accommodations are offered to the general public.” That means people will still be prohibited from consuming marijuana in a workplace that falls within that definition, regardless of the employer’s policies.
Similarly, the law actively prohibits the consumption of marijuana in “any place where the use or possession of a lighted tobacco product, tobacco product, or tobacco substitute” is prohibited by law. As Vermont employers know, Vermont law generally prohibits, with some exceptions, smoking in “an enclosed structure where employees perform services for an employer.” That means people are not permitted to consume marijuana in the vast majority of workplace settings that are not specifically exempted from the law prohibiting smoking in the workplace.
The new pot law also reserves for employers the ability to continue to regulate the possession or use of marijuana on the job. Specifically, the law provides that none of its provisions should be construed to:
- Require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace;
- Prevent an employer from adopting a policy that prohibits the use of marijuana in the workplace;
- Create a claim against an employer that terminates an employee for violating a policy that restricts or prohibits employees’ use of marijuana; or
- Prevent an employer from prohibiting or otherwise regulating the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana on the employer’s premises.
Those provisions mean you are essentially free to maintain or create policies that prohibit the possession, consumption, sale, or cultivation of marijuana and terminate employees who violate your policies, and the law doesn’t create a method by which employees can sue you for doing that (known as a “private right of action”).
It should be noted that the marijuana law doesn’t mention Vermont’s drug-testing law. As Vermont employers know, the drug-testing law places strict limitations on when and how employees can be subjected to drug testing. Those restrictions must continue to be observed carefully, and you shouldn’t view the legalization of marijuana as permission to conduct more stringent drug testing that isn’t allowed by the drug-testing law. On the other hand, if you permissibly test an employee and the result is positive for marijuana use in violation of your policies, the marijuana law wouldn’t prevent you from taking action under your policies to the extent permitted by the drug-testing law.
The medical marijuana/disability issue is also worth noting. Employment disputes involving medical marijuana usually revolve around questions of whether the use of marijuana is “lawful.” The use of medical or recreational marijuana remains unlawful under federal law, regardless of Vermont’s new marijuana law. So if an employee appears to be under the influence of marijuana at work, you can take action even if the employee is authorized to use medical marijuana.
However, if an employee tests positive for marijuana use through a drug test, there’s no question about whether he’s impaired at work, and he explains that he uses marijuana for medical reasons, it would be worthwhile to consult legal counsel about the best way to arrive at a practical solution that could resolve the issue while respecting any safety-related requirements of the employee’s job and your worksite. (For more on Vermont’s medical marijuana law, see “Employers’ medical marijuana rights, obligations under Vermont law” on pg. 1 of our February 2016 issue.)
Many employers have enacted policies that prohibit the possession, consumption, or distribution of “illegal drugs” but do not mention marijuana specifically or list all of the drugs that are prohibited. As we noted above, marijuana remains an illegal drug under federal law. The new Vermont marijuana law eliminates only state-law penalties for the possession and use of marijuana within certain parameters. Therefore, a policy that references “illegal drugs” would still technically be effective. However, if you want to clarify the point and avoid after-the-fact policy interpretation arguments with your employees, you may wish to specifically identify marijuana as a prohibited substance in your policies.
It’s good to see that lawmakers were thinking of Vermont employers when they crafted the new marijuana law and eliminated some potential questions before they could even be asked. In sum, if your organization prohibits the possession, use, and distribution of marijuana on the job, it will be business as usual. That shouldn’t be surprising since employers can obviously prohibit the use of legal substances such as alcohol in the workplace, and the liberalization of marijuana laws shouldn’t affect employer discretion on safety-related issues.
If you don’t have explicit policies addressing marijuana use but anticipate that you may be asked about your stance in light of the new law, you should consider creating some policy language clarifying your organization’s position on marijuana use, particularly in workplace areas covered by the law prohibiting smoking in the workplace and in places of public accommodation. Then, if an employee asks to use pot at work and tells you that you can’t prohibit it under the new law, you can say with confidence: “Dude, you must be high! Read the policy!”
Jeff Nolan can be reached at email@example.com or 802-864-5751.
Dinse Announces Two New Directors and Shareholders of the Firm
Dinse is pleased to announce that Maggie Platzer and Justin Barnard have been elected as Directors and Shareholders of the firm.
Maggie Platzer joined the firm in October 2011 after acting as Assistant General Counsel and Privacy Officer at Delta Dental of Massachusetts in Boston. Her practice focuses primarily on employee health and retirement benefits, and healthcare compliance. Maggie helps employers understand their compliance obligations when managing and reporting health coverage, self-insuring employee health benefits, and management of their 401(k), 403(b) or other retirement plans. She also advises healthcare providers as to their compliance obligations under HIPAA and other privacy laws.
Justin Barnard joined the firm in July 2014 after serving as a lead litigator in the Maine Attorney General’s Office for the Maine Department of Health and Human Services, and prior to that as a law clerk for the Honorable Kermit Lipez on the U.S. Court of Appeals for the First Circuit. Justin’s practice focuses primarily on representing clients before federal and state trial courts, appeals courts, and administrative bodies. He has represented clients in a wide range of industries and contexts, from solar development to professional malpractice.
Jess Phelps Publishes Article on Agricultural Conservation Easements in Ecology Law Quarterly
Jess Phelps of Dinse’s Real Estate and Environmental groups recently published an article, Defining the Role of Conservation in Agricultural Conservation Easements, in Ecology Law Quarterly, the environmental law review published by the University of California-Berkeley. This article focuses on the challenges of balancing the environmental protection of these lands against the need for these agricultural properties to have operational flexibility, with specific suggestions regarding how to encourage better conservation outcomes. This article is available for download, here.
2nd Circuit lambastes employer: ‘You should have known!’
Amy M. McLaughlin, Kendall Hoechst, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Amy McLaughlin
The “#MeToo” movement is sweeping across the country and calling well-deserved attention to the issue of sexual harassment. The U.S. Court of Appeals for the 2nd Circuit (whose rulings apply to all Vermont employers) is following suit. In a recent decision, the 2nd Circuit chided an employer for not doing enough to monitor the work environment and ensure it was harassment-free. Employers, pay attention: This case illustrates the new standard of heightened awareness.
In late 1999 or early 2000, a female dental assistant complained to the Connecticut Commission on Human Rights and Opportunities that Dr. Michael Young, the dentist with whom she worked at University of Connecticut Health Center (UConn Health), had harassed her. The dental assistant alleged that Young sent her gifts and notes saying things like “You’re beautiful” or “I love your smile.”
The complaint resulted in a “last-chance” agreement between Young and UConn Health that required Young to see a psychiatrist and imposed a 10-day suspension on him for “offensive conduct towards a [coworker], poor judgment, and not cooperating during the initial investigation.” The agreement further provided that he could be fired for “any future instances of unsolicited flirtatious letters or comments to any employee, or any behavior similar to this.”
When he returned to work following his suspension, Young received no additional attention, monitoring, or training. Further, UConn Health never informed his subsequent supervisors that he had been the subject of a sexual harassment complaint or that he was disciplined as a result of the complaint, including being put on a last-chance agreement.
Fast-forward to March 2008, when UConn Health hired Mindy MacCluskey as a dental assistant. MacCluskey began working with Young two days a week at Manson Youth Institute, a Connecticut Department of Corrections facility. Approximately six months after she began working at Manson, Young started making comments about MacCluskey’s appearance and what she was wearing, called her “young and beautiful,” and commented that he was surprised she had three children. He also asked her personal questions that made her uncomfortable, such as inquiring about her relationship with her children’s father and asking whether “anybody has ever cheated.” Moreover, he stood very close to her in a way she described as “creepy.”
MacCluskey reported Young’s conduct to both a coworker and a nurse who was also a union representative. Someone then reported to Dr. Alexis Gendell, who supervised both Young and MacCluskey at Manson, that there was a concern at the dental clinic. Gendell stopped MacCluskey in the hallway and asked “if there was a situation, is everything [OK],” to which MacCluskey replied, “There is a situation and I’m all set. It is under control.”
UConn Health never made Gendell aware of the earlier sexual harassment complaint against Young or his last-chance agreement. Gendell didn’t follow up on the conversation with MacCluskey to inquire about the nature of the concern at the dental clinic, make any effort to investigate whether Young had a history of “concerns” with other coworkers, or monitor Young’s conduct.
Because she needed more hours to support her family, in August 2010, MacCluskey requested a transfer to MacDougall-Walker Correctional Institution, where she would be assigned to work with Young three days a week. Her transfer request was approved, and she began working at MacDougall-Walker in December 2010. According to MacCluskey, Young’s behavior toward her escalated over a series of months and included the following incidents:
- He repeatedly commented on her appearance and asked her out.
- He brought lingerie and bathing suit catalogs to work and asked her to model the clothing in them.
- He sent her e-mails asking how he could make her “blush”; telling her that there were “rules” for her position, such as kissing him before and when she left work; asking her about “crazy hookups”; and telling her, “I love you.”
- He repeatedly bumped into her, touched her hair and hands, gave her shoulder rubs, stared at her, and sent her a Valentine’s Day gift.
- On one occasion in 2011, he stood in a doorway and blocked her from leaving a room, and when she tried to leave, he grabbed her waist, pulled her close, and put his hand up her shirt.
After Young put his hand up her shirt, MacCluskey reported the sexual harassment to Rikel Lightner, her supervisor at MacDougall-Walker, and filed an incident report. Lightner, in turn, reported the complaint to UConn Health. Young was placed on paid administrative leave while UConn Health conducted an investigation. After the investigation revealed that he had violated the internal sexual harassment policy, Young chose to resign rather than be fired.
In September 2013, MacCluskey filed a sexual harassment lawsuit against UConn Health. The case went to trial, and the jury found in MacCluskey’s favor, awarding her $200,000 in damages. UConn Health appealed the jury’s verdict to the 2nd Circuit, arguing there was no legal basis for imputing liability to it because it had no knowledge of Young’s harassment of MacCluskey before she complained in 2011 after the incident in which he put his hand up her shirt.
2nd Circuit’s decision
To prevail on a hostile work environment claim, an employee must prove that (1) the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment and (2) there is a specific basis for imputing the conduct that created the hostile environment to the employer. When a hostile work environment claim involves conduct by a coworker rather than a supervisor, the employer is liable only for its own failure to exercise reasonable care to address the harassment. Therefore, the test is whether the employer failed to provide a reasonable avenue for complaint or whether it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.
On appeal, it was undisputed that UConn Health provided a reasonable avenue for complaint, and Mac- Cluskey didn’t report Young’s conduct prior to 2011. The question, then, was whether UConn Health had constructive notice of the harassment. In other words, the crucial issue the appellate court faced was whether UConn Health should have known about the harassment in the exercise of reasonable care.
After considering all the evidence presented at trial, the 2nd Circuit concluded that there was sufficient evidence for a reasonable jury to find that UConn Health should have, in the exercise of reasonable care, known about Young’s harassment. The court specifically highlighted the following facts:
- After Young sexually harassed another assistant in 2000, he was disciplined and subjected to a last-chance agreement.
- Young’s supervisors, including Gendell, weren’t made aware of the last-chance agreement.
- Young’s supervisors should have been monitoring him.
- From 2009 through 2011, Young made inappropriate comments about MacCluskey’s appearance, inquired about her personal life, and invaded her personal space.
- At some time between 2009 and 2010, MacCluskey complained about Young’s behavior to two coworkers.
- Gendell was alerted to a possible issue at the dental clinic involving MacCluskey, but when she asked about the “situation,” she did so in a hallway rather than a private setting and didn’t ask follow-up questions, raise the issue again, or take any further action.
- Had Gendell been informed about Young’s earlier harassing conduct and his last-chance agreement, she would have conducted a more robust inquiry when she became aware that there was a “situation.”
Given that evidence, the court concluded that UConn Health should have known about Young’s harassment of MacCluskey in 2009 or 2010 and should have taken steps to remediate the situation.
Given today’s climate in which an ever-increasing number of sexual harassment allegations are being made, employers need to be especially cautious. Certainly, the holding in this case significantly reinforces that need.
Even though UConn Health had an antiharassment policy and MacCluskey didn’t avail herself of its provisions until more than two years after Young began harassing her, the employer was still held liable. The court concluded that given its knowledge of Young’s past harassing behavior, UConn Health didn’t do enough to ensure a harassment-free work environment and protect its employees. For example, it could have monitored Young’s behavior, informed his new supervisors of the last-chance agreement, and, perhaps most important, thoroughly delved into MacCluskey’s report of a “situation.”
Bottom line: It’s clear from this case that today’s environment requires employers to take a proactive approach. You must always be mindful, attentive, and cognizant of the work environment, and if there’s any potential issue that might rise to the level of concerning behavior, you must take immediate steps to address it.
Amy McLaughlin can be reached at firstname.lastname@example.org or 802-859-7031.
Dinse Welcomes New Attorneys
Dinse, Knapp & McAndrew is pleased to announce that Jess Phelps, Sara Huddleston and Michael Thomas have joined the firm as associate attorneys.
Jess is a member of the firm’s real estate group. Prior to joining the firm, he was an attorney at the United States Department of Agriculture, Office of General Counsel, Natural Resources and Environment Division in Washington, D.C., where he primarily worked on land conservation transactions involving the Natural Resources Conservation Service (“NRCS”) and Forest Service. He graduated from Drake University School of Law where he served Editor in Chief of the Drake Law Review.
Sara is a member of the firm’s business group and her practice involves a variety of corporate and nonprofit transactions, including drafting agreements and advising clients on corporate governance. She graduated from Boston College Law School where she served as a research assistant to Brazilian Supreme Court Justice Luís Roberto Barroso and Professor Paulo Barrozo. Sara also helped Professor Sharon Beckman, Director of the Boston College Innocence Program, establish a program to address the re-entry needs of exonerees.
Michael is a member of the firm’s business group and provides legal support to start-ups and established companies in all aspects of their business operations. Prior to joining the firm, he assisted startup companies in the Boston area by drafting licensing and operating agreements while working in the Entrepreneurship and Innovation Clinic at Boston College Law School. Michael graduated from Boston College Law School where he served as Managing Editor for the Boston College Intellectual Property and Technology Forum Journal.
When is final settlement of a worker’s comp claim not a final settlement?
Karen McAndrew, Leigh Cole, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Karen McAndrew
The Vermont Supreme Court recently shed some light—although not total clarity—on the effect an employee-signed release agreement can have on any later worker’s comp claims she may file.
Brandy Clayton was a hair stylist at a J.C. Penney store. In February 2011, she filed a worker’s comp claim for a painful left foot condition that she alleged first occurred in March 2010 as a result of standing on her feet all day. Her employer accepted the claim as compensable.
In October 2013, while Clayton’s claim was being processed and settlement discussions were underway, she saw a podiatrist for pain in her right foot as well as her left foot. The podiatrist noted that her pain in both feet was likely related to standing all day at work. She saw the podiatrist again for the same complaints in early 2014, and in June 2014, she told an independent medical examiner of pain in both feet.
In September 2014, Clayton and J.C. Penney signed a “Full and Final Form 16 Settlement Agreement” related to the March 2010 injury and filed it with the Vermont Department of Labor (VDOL) for approval. A completed Form 16 must be filed before the VDOL will approve any settlement of a worker’s comp claim.
The accompanying release agreement contained something of a mash-up of language pertaining specifically to Clayton’s March 2010 work-related injury and any associated conditions and broad general release language about any injury or condition related in any way to her employment.
By statute, the labor commissioner can approve a worker’s comp settlement only if its terms are in the employee’s best interests. To this end, a hearing officer appointed by the commissioner sent Clayton a letter that referred to her “foot pain” resulting from her work activities and cautioned that she should understand that signing the release “means that if you get worse in the future and need to see a doctor . . . or even have to search for a less strenuous job, you will not be entitled to any worker’s compensation assistance. I need to know that you completely understand this.”
Clayton signed the agreement, with the acknowledgment that she understood “that once the agreement is approved, I will relinquish my right to all future worker’s compensation benefits causally related to my . . . work injury.” The hearing officer then approved the settlement.
Six months later, in March 2015, Clayton filed a worker’s comp claim for injury to her right foot. J.C. Penney filed a form denial, stating that the condition predated the release and was causally related to her left foot injury. The commissioner held that the release barred all claims causally related to the specific work-related injury but then took it upon herself to rule that a release that bars anything other than claims related to the specific work-related injury—here, the left foot injury—is void as a matter of public policy. The parties appealed the commissioner’s ruling to the Vermont Supreme Court.
Court weighs in
The specific question before the supreme court, therefore, was whether the commissioner had the authority to void a release on public policy grounds, and the court held that she did not.
The powers of an administrative agency such as the VDOL are limited to those specifically granted by statute. The applicable statute in this case says the commissioner has the power to disapprove of a settlement or release only if it doesn’t conform to the general worker’s comp scheme or if it is found not to be in the best interests of the employee. In this case, there was the added fact that the commissioner’s designee—the hearing officer—had previously approved the release, so the commissioner had no authority to reverse that decision.
This is where the confusion comes in, however, because in the end it’s not clear what the dispute was about. The commissioner had held that the release was valid insofar as it covered conditions arising from the original work-related injury but not to unrelated claims arising from later injuries. The supreme court said it was valid to the extent it covered injuries that “pre-date or co-occurred” with that March 2010 injury, and J.C. Penney had apparently narrowed its defense on appeal to a contention that Clayton’s right foot injury was causally related to her left foot injury. So it seems like everyone was on the same page, in which case it’s not clear why the supreme court even waded into what appears to be a nonissue.
Moreover, the court’s opinion doesn’t clarify what would seem to be the critical issue: Does the release cover all work-related injuries—such as the right foot injury—that occurred before the date the release was signed?
In most other contexts, releases are written in terms of any claims “known or unknown” that have occurred up to the date of the signing of the release—and the release in this case, while somewhat poorly worded, contains language to that effect. The court referred only to injuries that “pre-date or co-occurred” with the left foot injury. It didn’t address the question of whether the release would bar further related claims. If the right foot injury happened after the left foot injury but before the release was signed and it was known at the time the release was signed, would the release bar a claim on the right foot? That answer will have to wait for another day.
However, the court did provide some helpful language about the enforceability of releases in the worker’s comp context. Once a release is approved by the labor commissioner, it may be set aside only if entered into under circumstances of fraud or “mutual mistake of fact,” which are the general standards for setting aside any otherwise valid contract.
The main message, in this and other contexts, is the importance of clarity and precision in contractual language, including releases, which are often used in connection with settlement of discrimination, wrongful termination, and other employment-related claims as well as worker’s comp claims.
Karen McAndrew can be reached at email@example.com or 802-864-5751.